Getting Court Permission to Sell Decedent’s Property in New York When the Clerk’s Office Won’t Explain Filings

Short answer: If you are the executor or administrator, you generally ask the Surrogate’s Court for an order authorizing the sale (often called an “order to sell” or “order for sale”). If you do not yet have Letters (Letters Testamentary or Letters of Administration), you must open probate or administration first. The typical path is filing a petition for an order to sell under the Surrogate’s Court Procedure Act, serving notice on interested parties, and bringing the petition before the judge on the return date. If the clerk’s office will not explain filing requirements, use court web resources, statutory text, plain instructions available online, or get a lawyer or free legal help to prepare and file the petition.

Detailed answer — step-by-step under New York law

1. Identify your legal authority to act

First confirm whether you already have legal authority to act for the estate:

• If you have a valid will and the Surrogate’s Court issued Letters Testamentary, you are the executor and may have authority to sell estate assets subject to the will and court supervision.
• If there is no will, the court must appoint an administrator and issue Letters of Administration.
• If you do not yet have Letters, you must file for probate (if there is a will) or administration (if there is not) in the Surrogate’s Court in the county where the decedent lived.

2. Do you need a court order to sell the property?

In many cases the fiduciary (executor or administrator) may need the court’s approval before selling real property of the estate, especially when the sale is not routine or when the will or Letters do not expressly give the power to sell. New York Surrogate’s Court procedures provide for petitions to obtain an order authorizing sale. See the Surrogate’s Court Procedure Act (SCPA) for sale procedures, for example SCPA § 2106 (order to sell real property).

Reference: SCPA (Surrogate’s Court Procedure Act) — see the statutes at https://www.nysenate.gov/legislation/laws/SCPA/2106 and the SCPA index at https://www.nysenate.gov/legislation/laws/SCPA

3. Prepare the petition (what to include)

A petition for an order to sell typically includes the following:

• Case caption and Surrogate’s Court county where the estate is pending.
• Decedent’s name, date of death, and address of residence at death.
• Your name and role. Attach a copy of Letters or attach proof you are asking for Letters if not yet issued.
• Full legal description and address of the property you seek to sell.
• Reason for sale (to pay debts, estate taxes, maintenance costs, to facilitate distribution, etc.).
• Proposed sale terms: whether you request approval of a specific buyer and purchase contract, or permission to market and sell under court supervision (advertisement, broker, minimum price, sale procedure).
• Supporting valuations or appraisals, mortgage balances, liens, tax status, and proposed allocation of net proceeds.
• A list of known beneficiaries and heirs with their addresses so the court can direct service of the petition.
• A proposed form of order for the judge to sign, and any proposed escrow or closing instructions the court should approve.

4. Supporting documents to attach

• Copy of the will (if any) and any codicils.
• Letters Testamentary or Letters of Administration (if already issued).
• Death certificate.
• Contract of sale (if there is a buyer already) or broker listing agreement (if applicable).
• Appraisal or Broker price opinion.
• Mortgage statements or payoff figures and any lien documentation.
• Inventory or preliminary accounting showing estate assets and debts.

5. Filing, notice, and the return date

File the petition in the Surrogate’s Court where the estate is pending. You must pay the filing fee and follow local court rules on format. The court will set a return date. New York law requires notice to interested persons — typically beneficiaries and heirs — and often to mortgage holders or lienholders. If the sale will affect creditors’ rights, additional notice and time to object may apply.

6. Court hearing and order

At the return date the judge will decide whether to sign an order allowing the sale and under what conditions. If beneficiaries or creditors object, the court will resolve objections or may require bond, advertising, or a confirmation hearing. If the court signs an order, it will authorize the fiduciary to sell according to the terms approved.

7. After the sale — accounting and distribution

After closing, the fiduciary typically files a return of sale or an accounting showing the disposition of funds, payment of debts, expenses (including broker commissions and legal fees), and distribution plans. The court must approve the final accounting or distribution unless the will or Letters provide otherwise.

What to do if the clerk’s office won’t explain filing requirements

1. Use official online resources: the SCPA text and New York State Unified Court System court help pages include instructions and forms. See the SCPA code at https://www.nysenate.gov/legislation/laws/SCPA and the CourtHelp/Surrogate resources at https://www.nycourts.gov/courthelp/.
2. Request written rules or a filing checklist from the court clerk rather than asking for legal advice. Clerks often can provide forms, fees, and filing deadlines, but cannot give legal advice or draft petitions for you.
3. Look for local Surrogate’s Court forms on the county Surrogate’s page. Many counties publish sample petitions, notice forms, and fee schedules online.
4. Get a short consultation with a probate lawyer. A lawyer can prepare the petition, arrange proper service, and represent you at the return date.
5. If you cannot afford a lawyer, contact your local legal aid provider or a county bar association lawyer referral service for low-cost or pro bono help.

When to hire an attorney

Consider hiring a lawyer if any of the following apply:

• Beneficiaries or heirs disagree about the sale.
• The property has mortgages, liens, or complex title issues.
• The sale involves out-of-state buyers or unusual terms.
• You are unfamiliar with court procedure or the estate has significant debts or taxes.

Useful New York resources

• Surrogate’s Court Procedure Act (SCPA) — statutes, including the provisions governing sale of real property: https://www.nysenate.gov/legislation/laws/SCPA/2106
• NYS Unified Court System — CourtHelp and Surrogate’s Court information: https://www.nycourts.gov/courthelp/
• New York State Bar Association — lawyer referral and resources: https://nysba.org/
• Local legal aid organizations and county bar association lawyer referral services (search by county on the NY courts or NYSBA websites).

Helpful Hints

• Start by confirming whether you already have Letters. If not, open the probate/administration case first.
• Prepare a clear petition that explains why sale is necessary and how you will protect beneficiaries’ interests.
• Collect and attach objective valuations or recent broker opinions to strengthen the petition.
• Serve all beneficiaries and known heirs properly and keep proof of service; failure to serve can delay the sale.
• Keep meticulous records of all estate-related communications, repairs, and expenses tied to the property — the court will want an accounting.
• If you have a willing buyer, include a copy of the purchase contract in the petition to show concrete terms to the court.
• If the clerk’s office will not give substantive guidance, ask for forms, filing fees, and a list of local filing procedures in writing, then consult counsel to fill the legal gaps.

Disclaimer: This article explains general New York probate procedures and is for informational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about your particular situation, consult a licensed New York attorney or a legal aid program.